DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P, INDIA.

Project Title

“Narco Analysis Test- A Comparative Study and its reliability”

Name of the Faculty

Dr. Nandini C.P

Name of the Candidate:- K. Sri Hamsa

Roll No:- 2018041

Semester:- 5th

1
 TABLE OF CONTENTS

1. Acknowledgment …………………………………………………………… 3
2. Abstract ……………………………………………………………………... 4
3. Synopsis ……………………………………………………………………...5
4. Introduction ………………………………………………………………….10
5. Case Analysis of “Selvi and others v. State of Karnataka”.…………………11
6. Reliability of the Deception Detection Tests ………………………………..15
7. Acceptability of Narco- Analysis: US courts ………………………………..16
8. Case Analysis of “State v. Pitts” …………………………………………….17
9. Case Analysis of “Lindsey v. United States”………………………………...20
10. Case Analysis of State of Uttar Pradesh v. Deoman Upadhyaya ……………21
11. Case Analysis of Rojo George v. The Deputy Superintendent of Police and Others -21
12. Conclusion …………………………………………………………………...23

2
 Acknowledgment

I would sincerely like to put forward my heartfelt appreciation to our respected Law
of Evidence Professor, Dr. Nandini C.P Madam for giving me this golden opportunity
to take up this project regarding “Narco Analysis Test- A Comparative Study.” I have
tried my best to collect information about the project in various possible ways by
referring to many materials and various online sources to depict clear picture about
the given project topic.

3
 ABSTRACT

Subject:- Law of Evidence

Topic:- “Narco Analysis Test- A Comparative Study and its reliability”

Introduction:-

The researcher would like pursue the project topic “Narco Analysis Test- A Comparative
Study and its reliability” wherein it is essential for an individual to clearly understand the
concept as to “What is Narco Analysis Test?” to subsequently understand the reliability of it
in comparison to other tests which are performed in various investigative and judicial
proceedings.

To briefly understand the concept, Narco Analysis Test is another type of Deception
Detection Test (DDTs) which includes the intravenous administration of a drug (such as
sodium pentothal, scopolamine and sodium amytal) which causes the subject to enter into
various stages of anaesthesia and in the hypnotic stage, the subject becomes less inhibited and
is more likely to divulge information, which would usually not be revealed in the conscious
state.

Moreover, as the society develops in its unique manner in various fields of jobs, becoming
more and more complex with every passing year, crime is also increasingly correspondingly.
The principal problem is that the increasing of crimes is not only reflected in the statistics,
but the quality of crimes have also been committed in a unique manner which necessitates in
the employment of modern scientific techniques in investigative and judicial processes such
as DNA fingerprinting, lie-detector tests, brain-mapping and narco analysis tests which are
also known as Deception Detection Tests (DDTs).

Most of these DDTs are equally relevant in cases where conventional forms of crime have
assumed to be of immense proportion, for example in the form of public outcry, or to make
up for shortfalls in investigative processes. Therefore, in the further contexts of this project,
what we are looking for would be the actual reliability of one of the Deception Detection Test
(DDTs) which would be the Narco-Analysis Test.

We would also be comparing the Narco-Analysis Test with other Deception Detection Tests
(DDTs) in order to understand the real reliability of the test for the conventional forms of
crimes with immense proportions on the victims which has been increasing in present period.

4
 SYNOPSIS

Title:- “Narco Analysis Test- A Comparative Study and its reliability.”

Introduction:-

The researcher would like pursue the project topic “Narco Analysis Test- A Comparative
Study and its reliability” wherein it is essential for an individual to clearly understand the
concept as to “What is Narco Analysis Test?” to subsequently understand the reliability of it
in comparison to other tests which are performed in various investigative and judicial
proceedings.

To briefly understand the concept, Narco Analysis Test is another type of Deception
Detection Test (DDTs) which includes the intravenous administration of a drug (such as
sodium pentothal, scopolamine and sodium amytal) which causes the subject to enter into
various stages of anaesthesia and in the hypnotic stage, the subject becomes less inhibited and
is more likely to divulge information, which would usually not be revealed in the conscious
state.

Objectives of the Study:-

The main objectives of the study is to understand the concept of Narco Analysis Test and to
compare it with other Deception Detection Tests (DDTs) in order to understand its reliability,
advantages and disadvantages over its usage on the subjects concerned.

Scope of the Study:-

The scope of the study is limited to understanding the advantages, disadvantages and the
reliability of Narco Analysis Test in comparison with other Deception Detection Tests
(DDTs) including the analysis of various Legal Provisions and Case Laws from India.

Research Methodology:-

The researcher would like to adopt the doctrinal method of research by following various
Indian Articles, Journals and Case Laws.

Research Questions:-

1. “Whether it is mandatory to obtain the consent of the subject before a Magistrate

administering the Narco Analysis Test?”

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 2. “Whether the guidelines given by the National Human Rights Commission are
binding upon the investigating agencies?”

Literature Review:-

The following sources have been used for pursuing the present project effectively which have
been mentioned below as follows:-

1. Primary Sources:- The primary sources which have been used for the project are:-
1. Indian Evidence Act, 1872 (Bare Act).
2. Heinonline (Online Source)
3. Westlaw (Online Source)
4. Lexis Nexis (Online Source).

2. Secondary Sources:- The following articles have been used by the researcher as the
secondary sources in pursuance of the project. The executive summary of these articles shall
be mentioned by the researcher which are mentioned below as follows:-

1. Use of Modern Scientific Tests in Investigation and Evidence: Mere Desperation

Or Justifiable In Public Interest?:-
The present article in discussion has been published by National University of
Juridical Sciences (NUJS), Kolkata in its Law Review in the year of 2009 by one
Abhyudaya Agarwal and Prithwijit Gangopadhyay who were the students of West
Bengal National University of Juridical Sciences in the year of 2009 studying in 3rd
and 2nd years respectively. The present article has been introduced in a very unique
manner wherein we can observe that crime takes new forms with the growing and
faster developing society every day.
As the famous Greek Philosopher had stated that “Necessity is the mother of
Invention”, an individual can commonly understand that with the growing and faster
developing society and various unique forms of crimes being committed on
individuals daily, it is pretty much necessary for the system of checks and balances to
come up with a new form of modern scientific techniques in the regular investigative
and judicial processes such as DNA (Deoxyribonucleic Acid) fingerprinting, lie-
detector tests, brain-mapping and narco-analysis tests.
However, the present article also discusses about the other problems which arise with
this newer scientific method such as medical side effects, exploitation of fundamental
rights etc. which shall be dealt with in the contexts of the project.

6
2. Narco Analysis As a Human Rights Violation (2011 2 MLJ Crl 25):-
The present article has been published in Volume 2 of the Madras Law Journal by one
J. Starmi, who is an advocate in the Madras High Court, Chennai. The present article
has been higher criticism of the Narco-Analysis Test which can be observed to be a
human rights violation in a certain manner which can be explained in the further
contexts of this project.
But, firstly, the present article has been introduced in such a manner wherein some
common aspects can be observed from the article where one such point is that the
latest Science and Technology is helping the people in various ways and the field of
law is one among them which had necessitated major changes which have been
undertaken in the age old laws of evidence with the advent of the latest information
technology which has been a vital part of Technological Evolution.
Furthermore, the present article also discusses about the constitutional validity of the
various types of Deception Detection Tests (DDTs) which includes brain mapping,
narco analysis, hypnosis and polygraph test which had emerged as the most powerful
branch (neuro law) in helping the law enforcement agencies in administration of the
Criminal Justice System which can be examined in detail in the coming contexts of
this project.
3. Legality of Narco- Analysis Test Under Indian Constitutional Law (2010 2 MLJ
Crl 39):-
The present article has been published in Volume 2 of the Madras Law Journal in the
year of 2010 by one Dr. Pawan Kumar, Assistant Professor-in-charge, Centre for
Juridical Studies, Faculty of Law, B.P.S Women University, Sonepat, Haryana, India.
The present article as observed and believed by me is an extension of the previous
articles in concept of it.
The article has been introduced in such a manner wherein we can observe the fact that
Men developed a branch of knowledge known as “Science” for a better civilization
and it has been divided into various branches like aeronautic science, information
technology science, astrology or forensic science. I believe that this article is the
extension of the previous two articles because the article has clearly paved the
analysis in such a manner that the concept of “Forensic Science” has been shown as a
backbone for the development of various scientific techniques such as the Narco
Analysis or the Truth Serum, Brain Mapping which have been developed in the 20th
century and these tests will be studied in detail in further contexts of this project.

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4. Evidential Aspects of Scientific Techniques in Investigation: Legal and Ethical
Issues (2014 4 MLJ Crl 28):-
The present article has been published in Volume 4 of the Madras Law Journal in the
year of 2014 by one Dr. J. Vijayalakshmi, Assistant Professor, Dr. Ambedkar
Government Law College, Chennai. The present article can be considered as a
different perspective which has been provided when compared with the three articles
above.
The aspect of different perspective of the paper comes when we can observe that the
present paper has been introduced in such a manner that the word put out is that the
scientific development had been in such a rapid pace of development wherein it has
overcome the pace of development of law which had created a real complexity
regarding what can be admitted as an evidence in court.
From what I can derive from this article is that, firstly, law and science have to go
hand in hand wherein the pace of development in both the sectors have to be helpful
to each other indeed where the most crucial challenge for the legal system of today is
that it has to deal with the novel scientific evidence on several occasions which turn
necessitated the employment of modern scientific techniques in the investigative and
judicial processes which differ from the usual investigative techniques which involves
the cooperation from the accused whereas the modern scientific techniques in fact are
often coercive in nature which would be discussed in the further contexts of this
project.
5. Evidentiary Value of Forensic Science With Special Reference to Narco Analysis
Test:-
The present article has been written by one Rajni Nanda who is a research scholar at
Guru Nanak Dev University (GNDU), Amritsar. The present article can be considered
as an extended tone of the previous article wherein we can clearly find out the
importance given to the concept of “Forensic Sciences” at the larger level which helps
the present criminal justice system to pursue a vigilant search for truth.
The present article talks much of the matter which is in consonance with the previous
article such as there is a rapid pace of development of science in the country in
comparison to the development of law and there is also an increasing number of novel
scientific evidence which has necessitated modern scientific techniques such as
polygraph test, brain mapping and narco-analysis test which are also known as
Deception Detection Test (DDTs).

8
 I have observed that Narco-Analysis is the most effective test over other embarrassing
third degree methods, yet, I believe that the Narco-Analysis test has many medical
side effects and moreover it leads to the violation of an individual’s i.e the accused
fundamental rights such as the right to privacy, protection against self-incrimination
etc. which can be studied into in detail in the forthcoming contexts of the present
project.

Therefore, after reading the executive summary which has been mentioned above, one might
get a clearer idea so as to what is a Narco-Analysis Test and what had actually led to the
beginning of the Narco-Analysis Test. Now, what I would like to show you, is that there are
various advantages as well as disadvantages to the Narco Analysis Test. I would also like to
show the real reliability of this test and the real question here i.e whether it is actually
necessary to take the step of risking the health and the fundamental human rights of the
accused/suspect to pursue the truth out of him/her in the forthcoming contexts of the project.

9
 Introduction

The researcher would like pursue the project topic “Narco Analysis Test- A Comparative
Study and its reliability” wherein it is essential for an individual to clearly understand the
concept as to “What is Narco Analysis Test?” to subsequently understand the reliability of it
in comparison to other tests which are performed in various investigative and judicial
proceedings.

To briefly understand the concept, Narco Analysis Test is another type of Deception
Detection Test (DDTs) which includes the intravenous administration of a drug (such as
sodium pentothal, scopolamine and sodium amytal) which causes the subject to enter into
various stages of anaesthesia and in the hypnotic stage, the subject becomes less inhibited and
is more likely to divulge information, which would usually not be revealed in the conscious
state.

Moreover, as the society develops in its unique manner in various fields of jobs, becoming
more and more complex with every passing year, crime is also increasingly correspondingly.
The principal problem is that the increasing of crimes is not only reflected in the statistics,
but the quality of crimes have also been committed in a unique manner which necessitates in
the employment of modern scientific techniques in investigative and judicial processes such
as DNA fingerprinting, lie-detector tests, brain-mapping and narco analysis tests which are
also known as Deception Detection Tests (DDTs).

Most of these DDTs are equally relevant in cases where conventional forms of crime have
assumed to be of immense proportion, for example in the form of public outcry, or to make
up for shortfalls in investigative processes. The instance of Abdul Karim Telgi in the stamp
paper scam and several other suspects in the Aarushi Murder Case are of contemporary
relevance in this respect.1

These Deception Detection Tests (DDTs) involve revelation of certain pertinent information
about the accused and moreover, they differ from the usual investigative techniques wherein
the usual investigative techniques involve a certain degree of cooperation from the accused
whereas on the other hand such cooperation need not be voluntary and in fact is often
coercive in nature.

1
2(1) NUJS L. Rev. 31 (2009).

10
Courts in India have witnessed numerous challenges to the constitutionality of these tests.
The cases which have been disposed of so far have been at the level of the High Courts, and
incidentally, their validity has been upheld in every instance.2 Presently, however, the matter
lies with the Supreme Court.3While the decisions of the High Courts have been unequivocal,
there are some issues that were not addressed completely by them, either because they were
not raised or because they were not felt necessary to be addressed.

The law on the status of scientific tests for evidentiary purposes is still not absolutely clear.
Recently, a Sessions Court in Faizabad in Uttar Pradesh accepted the report of a narco-
analysis test, stating that it is evidence which can be relied upon, to reject a bail application in
respect of a murder case.4 However, it was expressly treated as evidence only with respect to
the bail application to indicate something of the nature of a prima facie case, and not for
proving the statements of the accused against him to convict him.

As we proceed, we shall now observe that the judgments of the High Courts do not
sufficiently elaborate the present status of law in relation to the concerned areas even where it
is fairly certain. The decisions also disappoint on the aspect of developing further the existing
jurisprudence on the concerned areas of law. Prima facie, the practical utility of tests in
affording clues for investigation has been cited in favour of their continuation.5

One such Landmark Case Law which we can observe in relation to the reliability of the
Narco- analysis test is “Selvi and others v. State of Karnataka”6 which can be analysed as
follows.

Case Analysis of “Selvi and Others v. State of Karnataka”

The present Landmark Case Law has been held before the Hon’ble Supreme Court of India
on the dates of 5th May, 2010 with the Hon’ble bench presiding and consisting of His
Lordship “K.G Balakrishnan, R.V Raveedran and His Lordship J.M Panchal” wherein the
judgment was delivered by His Lordship “K.G Balakrishnan, J.” and the principal legal
questions in this batch of criminal appeals relate to the involuntary administration of certain
scientific techniques, namely narco-analysis, polygraph examination and the Brain Electrical

2
Santokben Jadeja v. State of Gujarat, 2008 Cri. L. J. 68 (Guj).
3
The Hindu, Supreme Court Reserves Ruling on Narco- analysis, January 25th, 2008, available at
http://www.hindu.com/2008/01/25/stories/2008012560561100.htm (Last visited on Nov 2nd, 2020).
4
Uttar Pradesh Court Admits Narco Report as Evidence, October 5th, 2008 available online at
http://www.nerve.in/news:253500170205 (Last visited on November 2nd, 2020).
5
AIR 2010 SC 1974.
6
AIR 2010 SC 1974.

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Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal
cases.

This issue has received considerable attention since it involves tensions between the
desirability of efficient investigation and the preservation of individual liberties and
ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a
sound conclusion, but, the present case is not an ordinary dispute between private parties and
it raises pertinent questions about the meaning and scope of fundamental rights which are
available to all citizens.7

Objections have been raised in respect of instances where individuals who are accused,
suspects or witnesses in an investigation have been subjected to these tests without their
consent and such measures have been defended by citing the importance of extracting
information which could help the investigating agencies to prevent criminal activities in the
future as well as in circumstances where it is difficult to gather evidence through ordinary
means.8

However, with regards to the reliability of the Narco-Analysis Test concerned, the Hon’ble
Supreme Court of India in the abovementioned Landmark Case Law had mentioned as
follows:-

“The scientific validity of the impugned techniques has been questioned and it is argued that
their results are not entirely reliable. For instance, the narco-analysis technique involves the
intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of
the subject and induces the person to talk freely.”9

On a better side of the coin, it is also necessary for us to understand the fact that many
empirical studies suggest that the drug-induced revelations need not necessarily be true which
means that when a person is intravenously induced with sodium pentothal, he/she goes into
their own illusionary world wherein their thoughts run faster in their minds and they speak
whatever they might feel in their illusionary world complied with what happened previously.

When an accused, witness or a suspect is in this stage of the treatment, the evidence they give
might not be reliable and is often irrelevant which is another problem to the judicial and
investigative processes to find out the actual truth whereas when we compare the narco-

7
AIR 2010 SC 1974.
8
AIR 2010 SC 1974.
9
AIR 2010 SC 1974.

12
analysis test to other Deception Detection Tests (DDTs) such as the polygraph examination
and the Brain Electrical Activation Profile (BEAP) tests which gauge the subjects familiarity
with the information related to the crime.

The alternative DDTs apart from the Narco- Analysis test are essentially confirmatory in
nature because the data is directly taken from the physiological responses of the subject rather
than the interpretation of a psychiatrist of the statements from the subject under the influence
of the intravenously induced sodium pentothal. Now, there are many issues in the present
Landmark Case Law which can be observed as follows:-

1. “Whether the involuntary administration of the impugned techniques violates the

“right against self-incrimination” enumerated in Art. 20 (3) of the Constitution?”
2. “Whether the investigative use of the impugned techniques creates a likelihood of
incrimination for the subject?”
3. “Whether the results derived from the impugned techniques amount to “testimonial
compulsion” thereby attracting the bar of Art. 20(3)?”
4. “Whether the involuntary administration of the impugned techniques is a reasonable
restriction on “personal liberty” as understood in the context of Art. 21 of the
Constitution?”

However, apart from the constitutional validity of the Narco- Analysis test, it is also
necessary for us to understand the concept of Narco-Analysis test which has been explained
in the judgment of the present case as follows:-

“This test involves the intravenous administration of a drug that causes the subject to enter
into a hypnotic trance and become less inhibited and the drug-induced hypnotic stage is
useful for investigators since it makes the subject more likely to divulge information and the
drug used for this test is sodium pentothal, higher quantities of which are routinely used for
inducing general anaesthesia in surgical procedures.10

This drug is also used in field of psychiatry since revelations can enable the diagnosis of
mental disorders. However, we can find the evolution of this technique from an article which
states thus:-

“With the advent of anaesthesia about a century ago, it was observed that during the
induction period and particularly during the recovery interval, patients were prone to make

10
AIR 2010 SC 1974.

13
extremely naove remarks about personal matters which in their normal state, would never
have revealed and probably the earliest direct attempt to utilize this phenomenon in criminal
interrogation stemmed from observations of a mild type anaesthesia commonly used in
obstetrical practice during the period of about 1903-15 and known as “Twilight sleep.”11

The Hon’ble Supreme Court of India in the abovementioned Landmark Case Law, therefore,
had given various guidelines for conducting voluntary tests such as the polygraph test and has
also held that these test results can be admitted under the S. 27 of the Indian Evidence Act,
1872. However, the Supreme Court in the above Landmark Case Law had not opined that
narco- analysis test as a reliable testing method which can be found in the following contexts:

“It does not have an absolute success rate and there is always the possibility that the subject
will not reveal any relevant information and some studies have shown that most of the drug-
induced revelations are not related to the relevant facts and they are more likely to be in the
nature of inconsequential information about the subjects personal lives and subjects could
also concoct fanciful stories in the course of the “hypnotic stage”.”12

Therefore, stating thus, the Supreme Court of India had disposed of the present appeals
accordingly and had stated that any information or material discovered with the help of
voluntary administered test results can be admitted in accordance with S. 27 of the Indian
Evidence Act, 1872, which is as follows:-

“Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.”13

Furthermore, after the case analysis of the abovementioned Landmark Case Law and after
consideration of the various grounds of challenge that may be raised against the tests in the
Supreme Court, it is found that while there are ample statutory safeguards to prevent adverse
use of such tests in a judicial proceeding, the safeguards to prevent abuse of such tests in
investigative proceedings are absent.14

11
C.W Muehlberger, “Interrogation under Drug-influence: The so-called Truth Serum Technique”, 42(4) The
Journal of Criminal Law, Criminology and Police Science 513-528 (Nov- Dec. 1951):
12
AIR 2010 SC 1974.
13
Section 27 of the Indian Evidence Act, 1872.
14
2(1) NUJS L. Rev. 31 (2009).

14
Moreover, coming to the reliability of these test they can be observed in the following
contexts of this project.

Reliability of Deception Detection Tests

1. Lie Detector or Polygraph:- The lie detector or the Polygraph test involves
attachment of paraphernalia externally to the body which measure several variables
such as the pulse, blood pressure, perspiration rate, etc. and the test is based on the
presumption that a false statement knowingly made by a person will cause these
variables to deviate from their standard levels.15
The standard levels are determined by asking questions to which the answers are
known by the interrogator and like any other investigative technique, in principle, the
subject may choose not to answer the questions asked.16
2. Brain-Mapping:- The brain-mapping test involves interrogating the witness on three
kinds of questions, neutral words which are directly related to the case, probe words
which attempt to elicit concealed information known by the accused, and target words
which include findings relevant to the case of which the suspect is not aware and the
test does not expect an oral response from the accused, who is merely expected to
listen to the words.
The suspect’s brain would interpret the words, and if he/she has some connection with
the words or stimulus, the brain would emit what are known as P-300 waves, which
shall be registered by sensors.17The results of the test are interpreted by an expert and
enable one to infer the areas on which the suspect possesses information and he may
then be subjected to a detailed interrogation on the specific areas regarding which he
is expected to possess information.
The interrogation may be a conventional one or aided by the administration of another
scientific test such as the polygraph or narco analysis and thus, the results of the test
enable one to conclude whether or not the accused possesses or is concealing any
relevant information.

15
Amar Jesani, Narco Analysis, Torture and Democratic Rights, in People’s Union for Democratic Rights,
TWENTY SECOND DR. RAMANADHAM MEMORIAL MEETING, 13 (2008) available at
www.pudr.org/index.php?option=com_docman&task=doc_view&gid=168 (Last visited on 4th November,
2020);
16
Subhojyoti Acharya, Is Narco Analysis a Reliable Science, The Present Legal Scenario in India, available at
http://ezinearticles.com/Is Narco Analysis A Reliable Science- The Present Legal Scenario-in India&id=991046
(Last visited on 4th November, 2020);
17
George Iype, Just what is the Brain-Mapping Test?, available at
http://www.rediff.com/news/2006/jul/19george.htm (Last visited on 4th November, 2020).

15
 3. Narco-Analysis:- The narco-analysis test involves injection of certain substances in
controlled quantities for two or three hours. This puts the accused in a hypnotic trance
and the accused is then interrogated, the statements made by the accused are recorded
on audio and video cassettes, and the report of the expert is helpful in collecting
evidence.
The first narco-analysis was done in the Forensic Science Laboratory, Bangalore in
2001 on an individual associated with offences committed by Veerappan.18For
conducting the test, the National Human Rights Commission (NHRC) has laid down
certain guidelines to the effect that the test should only be administered if the consent
of the subject is obtained before a Magistrate and therefore, the police cannot by
themselves conduct the test whenever they deem appropriate.19
However, the guidelines are only recommendatory in nature and therefore, cannot
bind an investigating agency which also incidentally solves one of the primary issues
of this project. Now that we have seen the brief overview of all the best deception
detection tests possible, it is also necessary to find out its acceptance by various
countries which can be found in the following contexts of this project.
Acceptability of Naro- Analysis: US courts

The Ninth Circuit Courts had excluded a recording of an interview conducted under the
influence of sodium pentothal and psychiatric testimony in support of it.20The use of sodium
amytal (a successor of sodium pentothal) or truth serum analysis was prohibited by the New
Jersey Supreme Court in the Landmark Case of “State v. Pitts” on the ground that the results
of these tests are not scientifically reliable and that it was possible for the subjects to fill
lacunae in stories (known as hyperamnesia) or to believe in false events, or to do a hypnotic
recall, whereby thoughts of non-existent events are believed by the subject.21

In the further contexts of this project, what I would like to briefly pursue is the in-depth case
analysis of both of these Landmark Case Laws with regards to the actual reliability of the
Narco- Analysis Test in the investigative and the judicial processes which, I believe, can be
seen through the analysis of these Landmark Case Laws in detail.

Case Analysis of “State v.Pitts”

18
Bannur Muthai Mohan, Misconceptions About Narco Analysis, available at
http://www.issuesinmedicalethics.org/151co07.html (Last visited on 4th November, 2020).
19
Teena Thacker, UN Sees Narco Analysis As Torture, available at http://www.expressindia.com/latest-
news/UN-sees-narcoanalysis-as-torture/321986/ (Last visited on 4th November, 2020).
20
Lindsey v. United States, 16 Alaska 268, 237 F.2d 893 (9th Cir. 1956).
21
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).

16
The present Landmark Case Law in discussion which is “State v. Pitts” has been held before
the Supreme Court of New Jersey on March 15th, 1988 and has been argued on June 21st,
1989 wherein the parties are State of New Jersey (Plaintiff-Respondent) v. Darryl Pitts
(Defendant-Appellant) and the present case is on appeal from the Superior Court, Law
Division, Camden County. The procedural posture of the present Landmark Case Law can be
observed as follows:-

1. Procedural Posture:- Defendant sought review of a decision from the Superior

Court, Camden County (New Jersey) after being convicted of murder and other
associated offenses for which he received life imprisonment concurrent with a death
sentence. The overview of the case is as follows.
2. Overview on of the Case:- Defendant was convicted of murdering two individuals as
well as other offenses that occurred prior to the murders. Thereafter, defendant was
given a life sentence for the murder of the male victim, and was sentenced to death for
the murder of the female victim. Upon review, defendant argued that the New Jersey
Capital Punishment Act infringed on rights afforded him under the New Jersey
Constitution and that it was error for the trial court to deny a motion to sever the
murder offenses from the offenses that occurred two days prior.22
The court held that the death penalty statute did not violate the federal or state
constitutional prohibitions against cruel and unusual punishment. Further, the court
held that there was clearly a connection between the murders and the other offenses
and that defendant was not significantly prejudiced by the joinder. Defendant also
argued that the court erred in not instructing the jury that the evidence relating to the
prior offenses were not to be considered as aggravating factors when determining the
penalty.23
The court agreed and affirmed the convictions and penalties imposed; however, the
death penalty was remanded for resentencing. The outcome of the present Landmark
Case Law can be observed as follows:-
3. Outcome of the Case:- The court affirmed the convictions and sentencing as to one
murder and prior offenses; however, the death penalty was remanded for resentencing
because the trial court erred in failing to instruct the jury that the evidence relating to

22
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).
23
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).

17
 the prior offenses were not to be considered as aggravating factors in determining
punishment.24

Now, it is pretty crucial for us to observe the admissibility of the scientific techniques such as
narco- analysis in the present case which has been discussed as a 4th issue as a branch of
“Guilt and Penalty Phase Issue” wherein the present judgment in context deals with the
“Admissibility of Psychiatric Expert Testimony Based on Sodium Amytal Interview of
Defendant” which can be observed as follows:-

“During the guilt phase of the trial, defendant offered the expert testimony of Dr. Robert
Sadoff, a highly qualified forensic psychiatrist, concerning defendant’s state of mind at the
time of the homicides. Defense counsel advised the trial court that Dr. Sadoff’s testimony
was based in part on an interview while defendant was under the influence of an
intravenously-administered barbiturate known as sodium amytal.25

The trial court conducted an extensive hearing pursuant to Evidence Rule 8 to determine the
admissibility of the expert testimony. The Rule 8 hearing included testimony from Dr. Sadoff
and two other highly qualified psychiatrists, Dr. Martin Orne for the State and Dr. Joseph
DiGiacomo for the defendant. Following the hearing, the trial court ruled that Dr. Sadoff
would not be permitted to give expert testimony in the guilt phase that was based on factual
conclusions derived from the defendant’s statements during the sodium-amytal interview.26

However, the court ruled that Dr. Sadoff’s opinion would be admissible if based on
hypothetical facts consistent with evidence in the record in accordance with evidence rule 58.
The trial court had adjudicated in the same manner even in the penalty phase of the accused
and denied expert testimony of Dr. Sadoff but, however, suggested that Dr. Sadoff could base
his expert testimony in the penalty phase on facts already in evidence by virtue of defendant’s
guilt phase testimony.

The defendant had advised the trial court that Dr. Sadoff would not testify because of the
limitations which are imposed on him by the previous trial court’s ruling and had contended
before the Ninth Circuit Court that the trial court’s rulings in both the guilt and penalty
phases were erroneous, requiring reversal of defendant’s convictions for murder and his death
sentence.”

24
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).
25
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).
26
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).

18
Regarding these contentions, the court has observed that the general principles that determine
the admissibility of scientific-type evidence were recently summarized in “Romano v.
Kimmelman”, 96 N.J. 66 (1984) which are as follows:-

“In New Jersey, the results of scientific tests are admissible at a criminal trial only when they
are shown to have “sufficient scientific basis to produce uniform and reasonably reliable
results and will contribute materially to the ascertainment of the truth.”27

The Ninth Circuit Court had stated that the scientific acceptability need not be predicated
upon a unanimous belief or universal agreement in the total or absolute infallibility of the
techniques, methodology or procedures that underlie the scientific evidence. Reliability of
such evidence must be demonstrated by showing that the scientific technique has gained
general acceptance within the scientific community.28

The Ninth Circuit Court had, therefore stated that “Once the showing of general acceptability
has been made, courts will take judicial notice of the given instrument’s reliability and will
admit in evidence the results of tests from the instrument without requiring further proof.
Thus, in determining the admissibility of evidence derived from scientific procedures, a court
must first ascertain the extent to which the reliability of such procedures has attained general
acceptance within the relevant scientific community.”29

4. Conclusion of the case:- In conclusion, the Ninth Circuit Court had held that the
defendant’s murder convictions must be reversed as he was denied the right to have
the jury consider the evidence in light of a charge based on non-capital or ordinary
murder.
The Ninth Circuit Court had also opined that the defendant was critically prejudiced
by the exclusion of the expert opinion of Dr. Sadoff concerning defendant’s state of
mind and motive and gave a dissenting judgment reversing the murder convictions on
the defendant owing to the error made by the trial court and directed that this should
not be duplicated in any resentencing trial.

In the further contexts of this project, it is also necessary for us to understand another
Landmark Case Law which is “Lindsey v. United States” and many other Case Laws which
also mainly talks about the actual reliability of the narco-analysis test.

27
86 N.J. 525, 536 (1981).
28
42 N.J. 146, 170-71 (1964).
29
116 N.J. 580, 562 A. 2d 1320 (N.J 1989).

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 Case Analysis of “Lindsey v. United States”

The present Landmark Case Law “Lindsey v. United States” has been held before the United
States Courts of Appeals for the Ninth Circuit on the date of 7th May, 1956 wherein the
respective parties are Rolland Lindsey, Appellant v. United States of America and we can
observe the Procedural History, Overview of the case and its outcome as follows:-

1. Procedural Posture of the case:- Defendant was convicted of three counts of

statutory rape and three counts of sodomy in a district court (Alaska) and was
sentenced. He challenged his conviction and alleged that the admission of a sodium-
pentothal test administered to the victim wherein she recounted her allegations against
defendant was improper.30
2. Overview of the Case:- The defendant, after being convicted and sentenced by the
Alaska District Court, had challenged his conviction alleging that the recording was
incompetent evidence. The Ninth Circuit Court noted that the test, while expected to
dispel inhibition so that a subject will talk freely, did not always have that effect.
Because the test was not generally vouched for by scientific authority as a truth-
extracting procedure, it was erroneously admitted into evidence.31
The court was unable to assess the impact on the jury of the psychiatrist’s statements.
Thus, the court reversed and remanded the decision of the Alaska District Court. The
Hon’ble Judge Mathews had held in his judgment thus:-
“Whatever may be the value as an aid to psychiatric examination or otherwise, we
cannot affirmatively say that the sodium-pentothal interview is generally vouched for
by scientific authority and so entitled to judicial recognition, through having gained
‘general acceptance in the particular field in which it belongs’, as a trustworthy truth-
extracting procedure, which is reliably so in all cases.32
Hence, it was error to admit the recording of the sodium-pentothal interview, even as
a prior consistent statement for the limited purpose of rehabilitating the impeached
witness.”
3. Outcome of the Case:- The court reversed and remanded the defendant’s conviction
of statutory rape and sodomy. The Court had held to the issue “Whether the admission
of the sodium-pentothal interview by the Alaska District Court is prejudicial towards
the defendant or not?” that it has found the admission prejudicial to defendant as the
30
16 Alaska 268, 237 F.2d 893 (9th Cir. 1956).
31
16 Alaska 268, 237 F.2d 893 (9th Cir. 1956).
32
Frye v. United States, 1923, 54 App. D.C. 46, 293 F. 1013, 1014, 34 A.L.R. 145.

20
 test was not generally vouched for by scientific authority as a truth-extracting
procedure.

Case Analysis on State of Uttar Pradesh v. Deoman Upadhyaya

The present Landmark Case Law is held by the Hon’ble Supreme Court of India on the date
of 6th May, 1960 by the Bench consisting of 5 Lordships, namely, J.C Shah, K. Subba Rao,
Mohammad Hidayatullah, S.K. Das, J.L Kapur. The judgment has been delivered by His
Lordship J.C. Shah wherein the procedural history of the case has been explained which is as
follows:-

“The Civil and Sessions Judge, Gyanpur, convicted Deoman Upadhyaya-respondent to this
appeal of intentionally causing the death of one Sukhdei in the early hours of June 19th, 1958,
at the village Anandadih, District Varanasi, and sentenced him to death subject to
confirmation by the High Court. The order of conviction and sentence was set aside by the
High Court of Judicature at Allahabad against which, the State of Uttar Pradesh has appealed
this court with a certificate granted by the High Court.”33

The Hon’ble Supreme Court of India had held that in the present case trial court correctly
convicted accused for offence of murder and the offence appeared brutal, conceived and
executed with deliberation. Moreover, the Supreme Court has also held that S.27 of the 1872
Act in so far as ‘that section relates to S.27 of the Indian Evidence Act’, were intra vires and
did not offend Article 14 of the Constitution and had set aside the order of High Court
acquitting respondent and restored the order of the Court of Sessions, thus, allowing the
appeal.

Therefore, the crucial aspect that we can observe from the above case law is that the
information which has been derived from the narco-analysis test cannot be directly used as an
evidence, but it can used for investigative purposes wherein the results of a narco-analysis
test can help the investigative agencies to acquire more information about a certain offence.

Case Analysis of Rojo George v. The Deputy Superintendent Police and Others

The present Landmark Case Law is held by the Kerala High Court on the date of 10th March,
2006 before the Hon’ble Lordship Justice K. Padmanabhan Nair.

Facts of the Case:- The case centres around the missing of a seven year old boy, by name
Rahul from Alappuzha. The boy was found playing in playground wherein some other
33
AIR 1960 SC 1125.

21
children were also playing. From the playground, he had gone to drink water from a nearby
tap. Thereafter he vanished into thin air. Initial investigation by local police did not give any
clue.34

The investigation was handed over to the Crime Branch and it was not able to get any clue
too. Thereafter, as per the order of the present court the investigation was handed over to the
CBI (Central Bureau of Investigation) and now it was investigated by the CBISCB, Chennai.
The Writ Petition averred that the CBI is harassing the petitioner and compelling him to
undergo Narco Analysis Test at the Forensic Science Laboratory at Bangalore.35

Furthermore, after a careful and in-depth analysis of the facts and issues of the case which are
about violation of fundamental rights of the Petitioner, the Hon’ble Lordship of the Kerala
High Court had observed his statements as follows:-

“As I have already stated Narco Analysis is a scientific test conducted by the experts in the
subject after taking all possible precautions. It is true that it has got adverse reactions also.
But such adverse reaction can happen while administering any medicine prescribed by
doctors practicing modern medicine. So merely, because there is a remote possibility of
adverse reaction, use of such techniques in conducting such investigation cannot be
prevented.”36

The Hon’ble High Court went on saying:-

“In present days, the technics used by the criminals for commission of crime are very
sophisticated and modern and the conventional method of questioning may not yield any
result at all. That is why scientific tests like polygraph, brain mapping, narco analysis, etc. are
now used in the investigation of a case. The possibility of side effects cannot be ruled out in
any case.”

Stating thus, the Kerala High Court did not grant any relief sought by the petitioner and had
dismissed the petition accordingly after a careful observance of the all the facts and issues of
the present case.

Conclusion

34
2006 (2) KLT 197.
35
2006 (2) KLT 197.
36
2006 (2) KLT 197.

22
The researcher would like to address the second main issue of the present project, i.e
“Whether the guidelines provided by the National Human Rights Commission are binding
upon the investigative agencies?” to which the researcher would like to state that the the
guidelines of the NHRC are only recommendatory in nature to the investigative agencies for
the use of Narco Analysis on the suspects and the accused.

However, in accordance with S.27 of the Indian Evidence Act, exercising a narco analysis
test upon accused/suspects would be valid option only for the investigative purposes and not
for direct application in the form of evidence i.e the result of the Narco Analysis test cannot
be used as evidence in a court of law but it can be used for getting further information in
relation to a case law or for stopping an emergency situation which might be estimated in the
future.

It is also true that Narco Analysis Test bears several side effects to an individual and it
hampers the fundamental rights of a person, but since our project is on the reliability of the
test in discussion, one can say that it is not perfectly reliable when compared to other
Deception Detection Tests such as the polygraph test or brain-mapping because there are
several chances that a subject might go into an illusionary world and might state many
irrelevant fact apart from the situation.

Moreover, Truth Serum Test is not generally accepted in the scientific community as held in
the case of “State v. Pitts”. That simply doesn’t leave the fact that this particular test has
saved many individuals lives and we might consider this test to be in the “experimental
stage” still, which is a great weapon for law enforcement agencies.

23